Texas AG's same-sex opinion doesn't worry entities

KTRK

May 3, 2013 4:12:13 PM PDT

EL PASO, TX --

Cities and counties that offer same-sex partner health benefits don't anticipate altering their policies after the Texas attorney general called the practice unconstitutional, though the office's opinion does serve as fuel for litigation against entities providing benefits to gay couples.

The opinion from Attorney General Greg Abbott this week, while not binding, is the latest of several challenges to same-sex benefits across the country that so far have had mixed results in the courts and prompted changes after officials in other states took action. In Texas, local governments from El Paso to San Antonio and north to Dallas County have their legal departments reviewing their benefits plans but don't appear ready to budge yet -- noting that their policies don't address issues such as marriage or gender.

"It's a benefits package that top companies in the area offer to their employees," said Dallas County Judge Clay Jenkins, whose county has a lesbian sheriff. "It is not only the right thing to do but also allows us to attract top talent so we can continue to have success."

The cities of Austin, El Paso and Fort Worth already offer some benefits to domestic partners, while Pflugerville, outside Austin, became the state's first school district to extend similar benefits.

"If our policy violates the law, we'll change it. But I'd conclude we are not doing that," said Samuel T. Biscoe, a judge for Travis County, where Austin is located. "Legally, we are in good shape."

Fort Worth spokesman Bill Begley said the city does not anticipate any problems to come from Abbott's opinion. "Our domestic partner policy does not say anything about marriage or gender."

The six-page opinion Monday came in response to tea party-backed state Sen. Dan Patrick's request for Abbott, a fellow Republican to review the same-sex benefits matter in November. In it, Abbott stated that local governments and school districts that offer marriage benefits to same-sex partners are violating the state constitution.

Abbott found that the constitution "prohibits political subdivisions from creating a legal status of domestic partnership and recognizing that status by offering public benefits based upon it." He said city governments and school districts constitute political subdivisions.

Patrick had argued that Texas amended its constitution in 2005 to define marriage as between one man and one woman, while prohibiting government entities from recognizing anything similar to marriage.

Some in Texas are already preparing lawsuits based on Abbott's opinion. They include Pastor Tom Brown of El Paso, who says he will pursue legal action against the city and the county of El Paso "by all the appropriate means to hold these entities to the standard" of the law.

Charles "Rocky" Rhodes, law professor at the South Texas College of Law and an expert on the Texas Constitution, said the opinions of attorneys general are "highly persuasive to courts."

"(The Texas Constitution) is pretty explicit that any same-sex union is not to be recognized," Rhodes said.

But there are ways around constitutional amendments.

After Michigan's Supreme Court said it was unconstitutional for governments to provide benefits to domestic partners based on an amendment that banned same-sex marriage, a number of cities and governments in that state changed their policies to broaden the scope of their domestic partnership programs so it was not only for same-sex couples.

Amanda Goad, staff attorney with the American Civil Liberties Union LGBT and AIDS Project, said there are ways to include a domestic partner in a benefits plan based on financial interdependency alone. She said in Kentucky, for example, cities like Louisville and Berea as well as public universities have developed programs that include another qualifying adult.

A workaround found by Michigan governments suffered a setback when the Domestic Partner Benefits Restriction Act was passed. ACLU challenged that and the matter is pending at the U.S. District Court of the Eastern District of Michigan.

Ken Upton, a senior staff attorney at Lambda Legal, a national legal organization dedicated to achieving full recognition of the civil rights of gays, lesbians, bisexuals and transgender people, said often before there's a need to change the policies, courts may strike down attempts to prevent the entities from giving benefits to domestic partners or creating domestic partner registries.

According to the ACLU, court decisions in at least 10 states over the past decade have ruled in favor of cities or states giving domestic partner benefits, concluding in most cases that doing so does not go against a state's constitution or break local law that defines marriage as a union between a man and a woman.

"Giving benefits to domestic partners is not an attempt to define marriage, it's just equal pay for equal work," said Upton, who works out of a Lambda Legal regional office in Dallas. "Unfortunately, the answer will have to come from the courts." ___________________________________________________________